. . .

COMMISSION OFTHE EUROPEAN CQMMUNITir=S

'Brussels, ·12.01.1996· . COM(95) 729 final

. 96/0002-(SYN) .

,..----· -· ---'-'.-- I

r

I

Proposal for. a ..

COUNCIL REGULATIOl'f (EC)

. laying doy.(n ·the conditiqns under which non-resident· carriers . _ · . may operate nat~orial road passenger transport services· within a Member· State

(presented by ·the Commissi~n) .

~~ .

. . ,/"

.. · .. EXPLANATORY MEMORANDUM.

Subject: Proposal for a Council Regulation laying down the conditions und~r which . · non-resident carriers may operate . national road passenger .. ~ransport .

. seryices ·within a Member State . /_

A. BACKGROUND

·1.

·2 ..

· The Court. of Justice's· j~dgmen~ of 22 May. 1985 on Case. 13/83 ruled that the .. : Council-was .!Jrider ~an obligation-.to establish the freedom to provide the national

·transport services referred to in Articl~ .75(lb). of the Tn!aty within a reason~ble p-6riod.

To implement thi~ ruling; on_4 March i987 the Commission submitted to. the Council a propos•ll for a Council Regillation laying down the conditions under which non-resident carriers . may operate. national' road passenger ir~nsport . services. within a Member State. 1· This established that any carrier who operates·

. ··.road passenger tr~nsport services for hire or reward, is established iii a Member . , State· in accordance with ·its legislation, is authorized. to provide international

coach or bus services and. satisfies the conditions laid down in Council Directive 74/562/EEC ·on admission to the oc_cupation shal( be permitted

. temporarily to operate ~tional.road passenger serviCeS. for hire or .rewatd by means of regular_ services,. shuttle. services or occasional services in a Member · State other' thin that in which he lS established~ . ' '' ' '

The transport services provid~d on this · basis. were go verne~ by · the la:ws·, regulatiol1S and administrative .-provisionS in force in the t~ostMember State, which had to be applied .. to -non-:-resident carriers. on the same conditions as jmposed on carriers established in the host. Member State, in order to prevent any discrimination against non-;resident carriers on grounds of-nationality or place of .. · establishment. ' ' . ' ' .

:t Qn 10 March 1988_ the European Parliament approved the Commission pr.op~sal, subject to three amendments.2 Tlte Comihission fou.ndtwo of those amendments acceptable and on 4 November 1988 subiuitted an amended proposaL3 .

4. · On 23 July 1992 the Cquncil· of Ministers' adoptel the proposal as .Regulation·

. 3

. 4 '

(EEC) ·No 2454/92 laying down the conditionS und~r which non-resident carriers may operate national road passenger tqmsport services within a Member State.4

This Regulation introduced the freedom· to· provide cabotage. services. by/coach ·· and bus in, two stages: · ·

OJ No C 77, 24:3.1987, p, 13. · QJ No C 94, 11.4.1988, p. 125 .

. OJ No C 301, 26.11.1988, p. 8 . OJ No L 251, 29.8.1992, p.) ..

/

.' ' /'

. with· effect from 1 January 1993 In the case of closed-door tours and · certain special regular services for workers, school pupils and students in zones within 25 km of frontiers; · with effect from 1 January 1996 for all other services, except regular

· services.

In. the case of the l11tter,_ Article 3(3) stipulates that "the Council shall revi~w the situation of reglilar services other than those referr!!d to in paragraph 2 in the

· light of t.he Commission report referred to in Article i2, taking into account, in particular, the national provisions applied by Member-States regarding controls and authorization procedures for ·regular· services."

5. : . On 29 October 1992 the European Parliament brought proceedings for annulment of this Regulation. The Court of Justice's ruling of 1 June 19945 annulled the Regulation on the ground that the Council had disregarded. the prerogatives of the Parliament. In particular, the obligation to consult the Parliamenr in the course of the legi~lative procedure provided for by Article 75 of the original version of the Treaty of Rome includes the duty to reconsult· Ule Parliament on each occasion when the text fmally adopted, viewed as a whole, departs substantially . from the text on which·the Parliament has already been consulted.

6.·

7.

8.

The Court considered that "a comparison between the Commission's initial proposal and the contested regulation shows that, as far as regular services are

· concerned, the amendments made have restricted the scope of the regulation to certain types of road. passenger transport and to Certairt restricted frontier zones

· in such a way as to affect the very essence of the enactz:nent. Those amendments must therefore be regarded as substantial. "6

The Court of Justice decided that. the provisions of the annulled Regulation may remain effective until the Council, after proper consultation of the Parliament,_ has . adopted new l~gislation on the matter, in order to avoid calling into question the. degree_of liberalization which Regulation 2454/92 sought to achieve.

Since then the Treaty- on European Union has amended the legislative procedure provided for in Article 75 of the. Treaty and, replaced the consultation-procedUre by fu.e ·cooperation procedure in Article 189c. Consequently, .this new procedure was the only way for adoption of the new Regulation implement~ng the Court's ruling. _ .- - · - · ~ _ ·-- . 1

' •

For this reason, to safeguard the prerogatives of all the institutions involved in the legislative procedure, it ·was decided to restart the procedure from the beginning·, i.e. to submit a new proposal for a ~egulation based largely on the: annulled text. · ·

Articles 3(3) and 12 of Regulation 2454/92 -.require the Commission:

· Case C-388/92.

Ground l3.

3

·. '

.. 9.

B.

I.

(a)

(b)

I (c)

- . . . . . . . .

. to report.(before 31 December 1995)-on the application of the Regulation · _and, in particular, on the impact of ~abcitage -transport operations on

nati<?nal -transport markets and.Oii W~ether COnSideration should be givep to extending the. sc'ope ··of the . Regulation to other regular.· :passeng(!r · .-. transport services; '·-if necessary' in the light of the conclusions of~the report, -to s'ubmit a proposal for a Regulation/to the Council. · .-. -

However, in view ofilie exceptionalcircu~sta_rices iri' this case, particularly the ~~tilment of the Regulation by the Court and the urgent need to take the

. measures required tci-irhplementits ruli.ng', this proposal-is-being submitted' to th~ Council b~for~ .the abovementioned report. is drafted .. _ In ·any case, the Commission's. power to propose new iegislation- is not conditional ·upon the

. drafting of such a report. . -. ,· .

- Th~ Treaty. estaqlish~s · the Single Market, within whith there riuist be free movement of goods, persons, service~ and capital.· This, together with the . abolition of-frontier cQntrols,-_means that the cabotage system must·be extended- · . to all. transport &ervices by bus <;>r ·coach~ including 'regular services. . .

' ',' ., l .• .... .

GROUNDS FOR ACTION AT COMMUNITY LEVEL

. . Subsidiarity.

What ·are the objectives · of the -.proposed action -'in relatiQn to the -.· Co~tinity's obligations?·.. - · ·

-_ The· objective. of this -- proposa1 js. to lay down the conqitidns under ·which · · . non-resident carders may operate- national coach and· bus services ·within ·a

_Member ·state ('~cabotage"). _ ,, . ·.

The fu~<;lamental objective is to establish -the freedom- to provide ··tra.nspor:t services and elimiriate all discrimiruition againstearriers on grounds ofnationality

·or. of the. fact that they are established in a Member· State other than the State in. which the servfceis provided. . . . . .

Does competence. for the planned activity lie solely with the 'Community or is It shared with the Member State5? · · ·

. Competence for this activity lies solely with the Community (ArtiCle 75(1)(b) of the Treaty}. · · · · · ~ · ' . - '

What is the C~nuriunity dimension of the problem (for example, how many Mem.ber Statesare.involved and what solution has been used up to now)? . ' . . ·. ' . . . . ,.

This field. involves every _Member State;

. . - ~ .

4

. f

The proposal .is based on the text of· Council Regulation No. 2454/92 of 23 July 1992 and removes the . restrictions placed on cabotage for certain passenger services. _

. This new Regulation ffi\!St replace Regulation No 2454/?2. which the. Court of Justice annulled on 1 June 1994 on the grounds of a fault in the legislative procedure.

(d) . What is the most effective solution taking into account the means available to the C~mmunity and those of the Member States?

To make cabotage possible, Member States must allow non-resident carriers to · operate national. transport services on their .territory. A clearly defined

framework is needed for this to avoid an discrimination between ope.rat9rs from different Member States. Consequently, the proposal lays down the legal framewor~ applicable to cabotage.

(e) What real added value will the activity proposed by the Community provide and what would be the cost of inaction?

· Adoption of this Regulation on cabotage will open lip. the national passenger . · transport markets to non-resident carriers. The freedom to provide cabotage

services is one of the fundamental principles. established by. the Treaty itself. Inaction by the Community would jeopardize this principle at enormous cost, considering that economic progress in the European Union depends largely on the. capacity of the Union's transport systems to provide the requisite mobility for· goods and persons. · · ·

(t) What forms of action are available to the Community (recommendation, financial. ~up port,· regulation, mutual recognition-, etc.)?

. This proposal is based on Regulation (EEC) No 2454/92, which was annulled by ' the· Court of Justice. Consequently, . it·· too takes. the form .of ·a Council

· Regulation. 'Since non-nationals must have access to ~e national passenger transport markets on the same terms to avoid distortion of competi~ion, . a regulation binding in its entirety and directly applicable in all Member States is the only fon;n of legislation which can be considered.

(g) Is it necessary to have a: uniform RegulaP,on or is' a Directive setting out the general objectives su.fficient, leaving implementation at the level of the Member States?

As indicated in paragraph (f), this proposal replaces and amends_ an existing Regulation and must •. therefore, also take the form of a Regulation. Morl?over, the field covered makes it netessary for cabotage passenger services by. road to be performed under the same conditions and using the same controi documents ..

· A Directive would not be an appropriate instrument.

5

I

h. Economic advarita&es of further harmonization '• .

• I

First, it must be remembered that this Regulation .is based on. Article '75( l)(b) ·of the Treaty., · which stipulates . that ·.the freedom • to · provide transport · serv'ices · miJst be­established. This imP,lies, iri particular,. putting .an end to all discrimination against ·

. . . . I . . .. . .. .· . provtd~rs of such' services oil grounds · of their nationality or. place of establishtneriL · Accordingly, this ·draft Reguhition provides that the same cop.diti!Jns and rules apply to the operation of natiorial road passenger. transport services within a Member State by.

· n.on~resident cariiers. This -systerrLis conuilonly known as "cabotage", . . ' . . '- ·. ' .

. it. must be stressed -tha~ the g'reatest economiC argument in favour of cabotage is ·that carriers·· authorized in their country ·of establishment-. to operate international coach · services- will have the' optiori of operating natio]1al pa~senger services irt every -European

-Union Member State and in every S_tate in: the European Economic Area established on· . 1 July 1994, This single market offers coach operators a travelling public of 370 million· . citizens, for whom the. freedom·. to provide·· transport. services will open.up new . · opportunities for traveL These new opportunities could subsequently generate new jobs . . in the transport industry. · · · · · '

.. . . .

. ' -

To avoid all distortion of competition, in accordance with· the' obligation to' ensure · . non-discrimination between. national operators and with the unique dimension ot' the internal market, the ·proposil lays down identical conditions for ·access to the various · national·markets by.rton-n!sidents. Nevertheless, the proposal leave~ all Member _States·· .the possibility .of . teferritig: the .. matter to the Coinini.Ssiort · in th~ event of serious

. disturbance of a -riational market by non-resident carriers. . . . . . "/ . ' .. . '' . . .:;:_·;

c.. ClJRRENT SITUA'I'ION AND OBJECTIVES OF THE PROPOSAL '

· · . I. · Current situation - ·:

Although the Court ofJusti¢e annulled R~gulation 2454/92, it deci~ed tha't the p~ovisioris of the Regulation may remafu effectiv,e uiltil the Council, after pmper consu.ltatfon· of the

· Parliament, has adopted new legislation· on the ·matter, 'in order to avoid calling into · . question the dc::gtee of liberaliZation which the Regulation sought to athi~xe.

' • ~ I.. ' , , '. . ' ,

. Regula~ion.2454/92 provides for different stages for the esta!?lishment of ~abotage for .. differenqypes of. coach and bus service: ·

1. . .

. . . .

. Occasional serv1ces ·/

. ·. ·r . .

. - . until3 f December i 995 authorization t() operate non-regular cabotage services · . is restricted ·to closed-door tours;

after' that date, all non-regular cabotage serVices will be authorized. . ' . . - [' .

. : ~

6

- . ~ -.

2. Special regular services·

Since the entry into force of Regulation 2454/92 cabotage in the form of sp~cial regular services -regular services carrying specific categories of passengers, to the exclusion of

· all other passengers - is authorized, subject to certain limits:·

(a) . ·limits concerning the type of service, since only' special regular services carrying workers between home and work and school pupils and students to and from _educational establishments are covered;

(b) geographical limits, since the services must'be carried out in the frontier zone of a Member State - within 25 km as the crow flies from the frontier common to two Member States - by carriers with a registered office or ·other establishment

· in the frontier zone of an adjacent Member State, provided that: ·

- the points of departure and destination of the transport 'services are situated in the frontier zone of the host Member .State; and · ·

the total distance ·involved does not exceed 50 km as the crow flies. in each direction.

3. . · Regular services

Regulation No.2454, which was annulled by the Court, did riot cover cabotage in the · form ·of regular services - services carrying passengers at specified mtervals along specified routes, with passengers .being taken up and set down at predeterinined stopping points. Regular Services cari be used by anyone - though. passengers may, where

· appropriate, be obliged to make a booking.

ArtiCle ~(3) of Regulation No.2454 stipulates that the Council will review the sitUation of regular services other.than the special regular services cover~ by Article 3(2), taking into account, in particular, the national_ provisions applied by Member States regarding controls. and authorization procedures for regular services, in the light of the Commission report, This report .must cover applicatic~m of the Regulation and, in particular, the impact of cabotage on the national transport markets and whether consideration should be given to extending the scope of. the Regulation to other regular passenger transport services.

7

I

' I

. I

i

,. ~· '·

..

~ . ' I. ~ ..

I ~): I I

. I ..

. 11: :Objectives of-.the. proposal . I .,

The objectives of. the:.proposaLare·:as ·follows: - - ! ' "

L To· :implement ;the ~juii!ginent .in <Case· :c~J88/92, · which annulled . Regulation 2454!92.

' . .

2. To ··.i,mplenient !.the ;,prinCiple ·Of :freedom ·to ~provide. services :in ·.the sector concerned, which· will·.entaiL rernov~l of: all·.restrictions pJaced on providers ,oC ... services on grounds-:of their- nationality. or· of· the: f~ct that they·are established' in.

:a.Member::State• other~than~th.(State in which:the serv-iCe ~ust be pr~vid~d. ~,

3. . To· remo~e' the:restriction.S which· wili · persist-even: after 1 J anuaty -1996 .in the ··.case. <;>fspecial.-regll.lar>s~rvices .. · · · ·

4. · ·.·To introduce:~cabotage in:tb.e.:course .. of-regular·-services,. particularly: · '' • • ' .•"" • • I

,-: ·: Reglilar~caf?otage:intlie.course of a regular international service in accordance .. · · ·· with,R~gtilation,:684/92;~_(Artic1<~3(2) of:. the .:proposal). · ·

' . ~ .

.. At- the. mo~ent; ~national services ~are cnever authorized as; part .of ;_a regu}ar , :.international ::s_~rvice. · (For . · ~ example, . . a .

· , ILondon~alais:Paris~Marseilles··sery,ite· may pickup passengers irl. . ·. J,..olidan:~butmot~ in(Cilais

1for' the journey. to ·Paris·. or.: Marseilles}.

• • c • • • - ,·· • -· ,l

:. tQpellig_g !.Up ·SUCh <natioll3.1 ; Qperations ; as ; part 'Of · international · ··. ssertlces :::must tbe :::considered ;authentiC :.cabotage, . provided ·tpe.

·operatoriis,;arnon:-resident. · - - . - . . .. _

·'The proposal is·thatsucb.cabomgeqperations··should be subject to · <;~tuthotization!l~y ,, the competent.authoriti~s ; in: the; heist Member . Bta,te. ·tthe creasoris ;,allowed . for·; refusal : o(. atitllorii.ation are. . extre~ely :;strict, artd · are-•largeJy ·.the ::Same:~as those provided fo_r inteniational:.services ~in: Regillation: 684192. :

. -··.Acceptance ofreglilar·cabotage:service~ ... Forttiis type ofcabotage:transport, _. : . the , Member :States: are ·6bliged \to :.app,ly·._tlie · existing laws,. regulations . and · · administrative ·;provisions :-i~ fore~ in· the host Member· -state· regarding the · croutes to~~ be gperated and the··regulai'ity'; continuity ·and: frequency .. of. services. • All these provisions must be applied under the same conditionS as are imposed· on riationat.carriers,. S02aS;to: rule outimy. discrimination against :non-r~sident

· carriers• on. the. grounds· Of: their·· nationality or place 6Lest3:bt'i~hment. These . conditionS ·are often defined: in~ contracts, .franchises or ·licences· to operate . ~public transport services .by;bus· or·coachjn· the•·Member·States.'

<. • • • ' ' • -. - • ·- • • • ~

]tis also. ~tipulate<l.t'hatal).y :compensation·for·public·sen~ice·.6bligations must . ·be: paid·to:alt the.'Coinmumw qperators .concerned. c

. · · 5. To ·ieincorporate- most. of the·/ provisions of Regulation 2454/92, particularly Articles 5, 6; 7, 8, 9, 10, 11, 12 and 14-thereof. ·

'

D. ARTICLE BY ARTICLE COMMENTS

Article 1

Article 1 of the proposal includes ·the full text of Article 1 of the annulled Regulation . 245419i, plus: a· more explicit reference to' the fact that carriers satisfying the conditions

laid doWn . in this Article must· be allowed to. perfonn cabotage operations without · discrimination on grounds of their nationality or place of establishment.

Article 2 ·

This Article ·contains defmitionS.of the various transport services.:. These definitions are· partly taken.ftom Regulation·684/92·on c6mmon rules for_ the internationai carriage of

· p~sengers by coach and bus, 7 the aim being to standardize tl,le defmitions applicable to · international and national. transport .services. · · · · ·- · • ·

Regulation 684/92 defmes four different tjpes of service: regul~ services, special regular· services, shuttle services and OCCasional services. Definition of the first two types poses no prob!em: Shuttle . services are. subdivided into· two types. in Regulation 684/92, ·depending whether or not accommodation is provided.· This

. distinction: has not been driwn in the proposal nor, moreover, in the legislation· of most Member States, which classifies such services as either regular or non-regular (occasional). Nor did Regulation 2454/92 include the ci>ncept of shuttle services.

Article 3

·Article 3 lays do_wn the rules on acCeSS to the market. Under these, with effect from the ·date of entry into.force of the Regulation, cabotage will be authorized for:-·

.-

1

all special regu~ar services;' th~ restrictio~ itriposed by Regulation 2454/92 have been removed; .

all occasional services. . Provis~on ~had been made for authorization. of cabotage . for such services, in any case, by Articie 3(1) of Regulation 2454/92, which· would have . allowed . cabotage . for . all non-regular 'services after . 31- December '1995;

two forms of cabo~ge have been provid(!d for regular services:

- regular cabotage in the course· of a regular international se~ice in compliance with Regulation 684/92 (Article 3(2) of the proposal}. This _provision will

OJ No L 74, 20.3.1992, ·p. 1..

9

. ;l

~ i

. '

l:

.1,

I .~

. ~ . i

I I

~ . : ' I

i i

'·.

...

allow better allocation Of resqur~es by ca~iers, sinceat th~ il}pment national · services are never authorized as part of interna~iomil services;· · _.

:- acceptanee of regt.ilar cab()tage services (Article 3.3 of.the draft" Regulation). For this type of cabotage transport; . the 'Member· States are· obliged to apply ··.

·the existing laws, .-regulations and administrative provisio.ns in force in the host Membe·r State regarding the routes to be operated ·and the ~eglihtrity. contirtuity and fre·quencyofservices, . All these provisions· must be applied

• under ihe same conditioll$ as are .imposed on national carriers, so as tci nlle . out- any ~iscrimination against non.:.re~ideht carriers· on ~he grounds of their · nationality or pla~. of establislunent. These· conditio_ns .are- often defin~d in

· c:oritracts, franchises or. licences to operate pu)?lic transport services by. bus ·<?r .coach ·in tl)e.Member ·States. . . o· . · ~

·rt:is,also stipulated trult any compensation fot ·public service obligations must.· be ·paid to all the Commuility operators concerned.

ArtiCle A

This Article establishes· the legal provisions ~pplicable to cabotage in the course of the . . international transport ser\riees referred to in· Article 3(2) Of the proposal.

RegUlar international coach and btis .services are subje~t t() autho~ization .in' accordance with ArtiCle 4(4)_ of Regulation 684/92: · The nature of the· authorization,· the authorization procedure, the. grounds . for rejection .. of. applications . to ope_nite . an international servi~ and the obligations of carriers are set. out in· Articles 5 et seq~ of Regulation 684/92~

This ~roposaJ makes ca~tage in the course of internatio~i traD.sport services subjectto .authorization; The need for such ~uthorization is warranted by· the internal logiC of the system, since :authoriZation is required for the international service itself.

The authorization will be issued by the competent,authorities of the host Member.State;. i.e. of the Member State in which the cabotage operation is performed, unlike. the authorizations · for international services whiCh· are · issued iii agreement ·with the competent authorities of alllhe Member States in whose territories pas-~engers are picked

. \ ·up or set down. . . . . .

The reasons for rejection of authorization are the saine as in Regulation 684/92, with one important change: . . . .· , · ·

.,. •.·

the ·proposal . does -not., include· the reason in Articl~ 7(4)(b)(ii) of Regulation 6S4/92, which stipula~es that applications_ rriay __ ~e rejected. :'if _it is· shown that the said s~rvice would serJously affect the viability of a comparable raiLservice on.the direct•sections concerned". This-clause has been omitted in-order to maintain competition b~t~een the various mqctes of transport. .

10 ..

' . ~ •. ~ ' ~ .. ~ .' .

The rest <jf Article· 4 incorporates" the equivalent. clauses from Regulation .684/92 on · ·international: services·. · ·

Article 5.

· This Article incorporates all :of' Article 4 .of th:e.annulled~Regulation 2454/92 plus -one new reference: save as otherwise provided in Community legislation, the ·op~ration of the regular cabo~ge·services provi<fect for in Article·33 is to be subject to the existing·

_laws, regulations and. administrative provisions. in· force in· the host Member. State regarding the routes to . be. operated and. the. regularity, . continuity._ and frequency of' services.

. .

Any compensation for· public. service, obligations· must, be paid. ~o all the Community. operators concemect. · · . - · . · · ·

ArtiCles 6. 7. 8 . .9. 10. 11 and 12:

These Articies contain virtually. the full• text of' the: equivalent clauses in the annulled Regulation 2454/92, with v~ry minor changes ·which make no difference to the substance.

11

•

131

c,

COUNCIL REGULATION (EC), No .

laying dow~ the conditions u~der .which non-reside)1t car_riers may operate _ 'national road passenger transport services within a Member State · . ' . .

/

·.· ..

.:· . . . · .

• '· ..! ·~

12

.. , .. -

-- _COUNCIL REGULATION {EC) Ne

of··

iaying down. the cenditions umler which. non:~esident<<;arriers:may ~operate national road passenger .transport services within a ·Member 'State - .

- .

THE COUNCIL OF. THE EUROPEAN UNION

Having reg~d to- the Treaty -esta:blishing the ·European Community,- and' in .pru::tic~lar Article 75 thereof~ · · · · -

H~ving regard to .~e proposal from the:ColllllJ.ission, .

Having regard-.to the opinion ·of the Econoniic and SoCial Committee,

ln cooperation: with the E\Jro)?e~ Parliament~.

:· Whereas Co.uncil Regulation (EEC) -:N"o 24'54i:92laymg .da\yn the conditions ,under which rion~resiaent carriers maY operate national road -passenger transport servic~s~ \.vithin .a• ... ·Member State Was -a.Qliulled- by the Court of JuStice~ s: ruling of ·1 June 1'994',8 ~by rea8on · of a fault _in the le~islative procedure for adc:>ption thereof;: . .

Whereas, •pursuant to Article7S(lb) -of.the-Tte~ty;_.the-,eSt:ablishment of:ao·•common· :. transport policy entails; iiiter alia, laymg down .the conditionS UI1fler \\fhich -non~residerit _ .

: carriers. may operat~ nation81 .transport' serVi~~. withi~ ·a Member ·State; :

Whereas Article 59 of ttre'T~ establiShes th~- objective of abolisnfug :restrictiqris:_:on the freedom to provide services Within the Community; whe~eas ,this objective must 'be . · achieved within the fraineW9rk Qfthe ·common transport:poliCy~inacc()rdance:with· Article 61(1) of the Treat)r; ' , ·

Whereas, e1s: -the · C9~ of Jilstice has- -said,~ the· .obligations: :.imposed. on the. ·Council -by· Article . 75(1 )(a). and (b) of the: TreatY incfude the· ·obligation; to ~ensur~ ,fhat there. is freeciom to-provide services :in. the .field. of:transpon;·, whereas -the <extent ·of this obl~gation is. clearly defmed' 'in the _r,reaty;~. . . · · · · · - i - ·

· ... : . '

. ·. Whereas that provision entails the r~riwval of all restrictio~. against. -~• person• ·proViclmg. · ·the services: in .qu_estiq_n on t,lle grounds '9fhis nationality ·or ·$eJac~-that ;he)s,,~stablished1 .

-in ~ Member State other .than that in which the· ·service :is·.to :be :Provided; :_, c, .. ·.:·, · . . . ' . . ~ . . . ' . ~ . .

- . . . ( : . . ~ . - . . . . . .

. Whereas establishing· the: internal mai~etipvplyes the abolition of frontier :control's and, · .· ·consequeJ1tly~. an· increase in intra.:ComniuriitY traffic;. : · · · _

· .s·.:·:> ~-, ;Judglrient!:of'Fiun'~;l994~:.&sc:•c;J~s/92;·.~&riihln~iv~'~t~~iu'::.•.i ,.,: ·: ;Lt'':· · ·

: ~ 9 • Judgemeat ~of 22 iMay~' 1-985,; case ···r3t83~Pailiameiit'-~:' ei:>phcil;; 1 · ·

• ·.., r

'' . __. •. .i-ilJ .

Wher~s the rules applicable to. cabotage for all_ forms of coach and bus. service inust . be established; · · - . .

Whereas the:: provisions of ~~he host Member State applicable to ca~otage transport operations should be fixed; .

Whereas provisions should be adopted so that action can be taken in the .event of serious dLSturbaJ1Ce Of the transport marketS affected;. .

Whereas it is desirable that Member States should grant ~ch other inutual.assistance with .a view to tlie sound appl~cation of this Regulation, particularly in respecc of penalties applicable in the event of infringementS; · ·

Whereas it is for the . Member States to adopt the measures necessary for the implementation of this Regulation; ·

. . Whereas the application of this Regulation should be monitored by means of a report to be submitted by the Coriunission, - ' · ·

HAS .ADOPTED THIS REGULATION:.

Anicle 1

.Aily carrie~ V{ho. operates road passenger tt:ansport ·services .for_ hire or rewa.r9 who: ' . ,· . .

· is established in a Member State,· hereinafter refelred to as the "Member State of estabiishment", in accordance with its legislation, and .

·is · authorized, in tha~ ·State, .in accor<lance with relevant Community law,· to purSue the :occupation of road passenger transport . operator in international transport operations,

shall be .permitted, under the· conditions laid down In this. Regulation and ~ithout · discriniination on grounds of the . c~rrier's nationality or· place ·of establishment, . temporarily to .operate national road passenger services for hire or reward" in .another

Member State, hereinafter referred to as the "ho~t· Member State'', without being required to ,have a registered·"Office or other establishm.ent iit that State. ·:- . . .., . . . .

.. Such national ti:aQ.Sport. services are .hereinafter refeqed to . as "cabotage transport . operatimis". ·····::' ' ·· · · ···

·· .. ~~: .

For the purposes of this Regulation:

r. "Regular .. s.ervices•"·,means servi~s. which· provide-for the:carri~ge'of passengers at specified intervais along-,speeified routes,. passengers ·being taken up and set

14

"

2.

- -.down at predetermined stopping _points. Regular services shall be open to all -. subject; where al?propriate,- to compulsory reservation.

~"Regular'intermitional services_" means the services referred to in Article 2( 1.1) of ~Council Regulation :No. 684/9210

-

. 3. _ "Special regular se~vices·" mean5 t~gul~r services which provide forthe carriage _of specified categories· of passengers, to the exclusion of other passengers, at specified in~ervals along specified routes, passengers being-taken up and set dow.ri. _ at ·predetermined_ ~topping pointS. _ . / ---

. . - . . . . . .

Special ~egular st::rvices _shall inClude:·

(a) -the carriage of workers between home and work, · _(b) - carriage ~o and from the educational institution for school pupils and~ · ·

students, / ·_ ' _ _ _ (c)- __ the carriag~ of soldiers and their families between their place of origin and

the area of their barracks. - - - ·

_The fact that a special service may be varied according to the needs.ofusers sliall . ·net 'affect i!S Classification ·as a regular· ~ervice_. __. • · ·

. . I

- 4. "O~asional services" means services falling neither within the defmition of a regular service nor .within the defmiiion of· a special regular service.. These _ services shaltnot cea5'e-to-be Occa:sioruil services solely becaus~ they are provided- .. . at certain intervals.

- 5. -_ - ','Vehicles,; means motorvehj.cles ~hich, ~y ·virtue of their type of construction and equipment, are suitable for cailying more than_nine_persorts -inCluding the

·driver -:_,and are intended for·that purpose. -- · · · ·' '. • I' . '

. Article 3:

. With effect from the date :of entry into force of this R~gulatiori, cabotag~- tranSport operations shall be authorized for the following services:

-.. _ . . 1. ' special regular services and occasional services;

2. . the regula~_. services defi~ed in Article2(1), provided they are p~rfonned: by a · carrier not resident- in the host Member State·: in the- course _of a regular ·.

· -in~ernational s~rvice iii accordance with the provisions of CoU:neil_ Regulation 684/92. j, • - ' .

' '··. ··'.

_ -3; · the other regular services.

10 OJ L. 74; 20.3.1992~ p. 1

t5

Article 4

1.· Cabotage transport operations carried out in accordance with Article 3(2) shall -be subject to authorization by the competent authorities in the host Member State.

2. Applications for authorization may be refused:

(a) if the competent authorities in the host Member State produce evidence that the regular service for which the application to perform cabotage operations ' has been submitted would directly. compromise the ·existence -of regular services already authorized, except in cases in which the regular services, 'in question are carried out only by a single carrier· or group of carriers;

(b)' if the competent authorities in the host Member State produce evidence that the regular service for which ~e application. ~o perform cabotage_ operations , has been submitted is aimed only at the . most lucrative of the services. ' existing on the links conc-erned.

The facf that an operator. offer~ lower prices than are offered by other road carriers or the fact that the link in question is already operated by other road carriers may not in itself constitute justification for rejecting the· application.

· Paragraph 4(a) of Article iof Regulation 684/92 shall apply, mutatis mutandis, to applications for authorization of cabotage operations in the form of the regular serviCes provided for in Article 3(2). ·

Reasons must be given for rejection of the application.

The competent al,lthorities may refuse applications only on the basis of reasons compatible with this Regulation:· · · · ' ·

3. The Member States shall_ guarantee carriers an ·opportunity- to defend their interests in the event of rejection of their application for authorization.

4-. Authorizations shall be issued in the·name of the transport undertaking; they may not be transferred by the-latter tc;Hhird parties. However, the carrier who has received the authorization~may' with the consent of the competent authority in the liost Member State, qperate the service .. through the only subcontractor authorized to provide the international service referred fo. in Article 2( 1. 1) Of .

· Regulation 684/92 .. In this case, the name and role of the subcontractor shall be . indicated in the authorization. The subcontractor must fulfil the conditions laid down in Article 1. ·

In the pase of undertakings associated for the purpose of performing cabotage operations in the form of a regular service,· the cabotage authorization shall be issued in the names of all the undertakings~ It shall be given to the urid.ertaking that' manag(!S the operation and copi~s shall be given. to _the others. - The authorization shall state the names of all the openitors. ·

16

. I -.

-- 5.- The ·authofizationshall be validfor a ·~axi~um of five years and, ·in ariy' case-, for not loiiger than the authorization relating· to the international service within :

·the :framework of which the cabotage operation· is carried out. - ·

6: Save· in the event of force majeure,~ the ope~ator of a reguJar cabotage service shall, until the' authorization expires, take-all measures to guarantee <!. tr:anspo~. service that fulfils· the ~tandards 'of continuity. reguiarity · an<:l capacity a·nd the · other conditions laid down by the competent :authority pf the host Member Sta~e 'with regard to the route of the service, the' bus stops, the timetable and the period

. of validity of the authorization. These conditions may not be less .favourable than ~· the .coriditions applied to regular transport services provided by resident- carriers ..

7. The authorization or- a certified true copy thereof must be: ke'pt on board the :vehicle. · · ! •

8. The con:un1ssi~n ~hall, after COnSUlting the Member States, lay down the model . ' ~or ·applications for authorization of cabotage operations in the form of .regular . services, the model auihorizati_on and the way in which they are to be used. .

. . . . - . -·

ArtiCle 5'

1. The performance of the cabotage transport operatio~ referred_to in Article· 3 . .

II

· · . shall be subject, save as otherwise provided in Community legislatii:m, · to th~ . ·taws, regli_tations and administrative. provisions in force. in. the host Member' State . .

. in the following areas: '7. · . . ·

. . . . .

:(a) rates and· conditionS· governing the transport contract; . ' . .

(b) weights. and dimensioits •... of road. v~hicle~;. such weights and dimensionS • may, ·where appropriate, exceed those applicable in the carrier's Member· State of es!ablishrilent, but they inay 1.mder no circ~mstances exceed',the

(c)

· technical standards set ciut In the certificate of conformitY;

requirements relating.to the carriage of certain categories of passengers, viz. schoolchildren, children' and persons with reduced mobility; .·

(d) driving and re~t time;

(e):. VAT (value added tax)·on transport services, In this area Article 21(1a) ofCouncil Directive 77/388/EEC of 17 May 1~77 on the harmonization of the laws of the Member States relating to turnover taxes - common system of value added tax: · uniform. basis otassessment1

,1

- shall applyto tl}e serviCes referred· to in _Article 1 of this Regulation;

~ . . '" .

OJ No L 145,.13.6.1977, p.1; Directive 'iastam~ndedby Di~ective 91/68()/EEC (OJ No L 376, . .31.12.1991,,p. 1).

I - 17

·--.

2. Save as otherwise provided in Commu~ty legislatipn·, cabotage operations whiCh form part of the ·transport: ser-Vice~ provided for in Article 3(3) shall be subject to the existing l~ws, regulations.and administrative provisions in force in the host -Member State, regarding the routes to· be operated and the regularity, c_ontinuity and frequency of services. · ·

Any· compensation · for public .. servi~e' obligations must be paid to all the Community ·operators concerned._

3. The technical standards of construction and equipment wh.ich must be met by vehicles used·to carry out cabotage transport operations "shaJl be those laid down

· for vehicles put into circulation in international transport:.. ·

' 4. The national provisions referred to iii paragraphs 1 and 2 shall be applied by the

Member States to non-resident carriers on the same conditions as those imposed. on .their own nationals, so as effectively to prevent. any·. open or hidden ·discrimination on grounds of nationality or place of establishment.

. : . '

. 5. If it is ~stablished that, in the light of experience, the list of areas covered by the host Member State's provisipns, as referrect to in paragraph 1, needs . to be amended, the Council s~ .. 49 so by a qualified maiority, in cooperation with the European. Parliament, on a: proposal from the . Commission .

. Article 6

The Member State of estabiishment shall tssue. a certificate conforming to th~ model .adopted by the Coriurussion .after consuiting the Member States to carriers . who apply

. therefor. and ·who satisfY the conditions laid down in Article 1. .

·the authority or agency in that Member State with the power to. issue the certificate shalf also have th~ power to withdraw it, temporarily or defmitively, in particular as one of the penalties referred to ·in Article 11(4). · .

. That certificate or ~ certified true copy thereof shall be kept on board the vehicle and. be produced. w:hen requested by an authorized· inspecting qfficer. ·

·Article -7

1. Cabotage transport operations in the form o(ocGasional services shail be.tarried . out under.covet of a control document- the journey form- which must be kept on board the vehicle and· be produced when ~uested by an authorized inspecting officer.

2.- . Thejoumey form, the model for which shall be adopted by the Co~ission after .consulting _the Member States, _shall comprise .the following information:

(a) · the p_oints of departure and destination of the service;.

(b) . the date of departure and the date on whiCh ihe service ends.

18

3. . The journey forms sh<1:ll be supplied in books certified by the competent authority ·~ or agency in the Member State of. establishnient: The modd . for the book • of journey forms. shall be adopted \by th~ Comrilission after ·consulting the Mem_ber States. · · / · - · ·

4. In the case of special reguiar -services; the.coritractconduded between the carrier ) ' and the t~ansport: organizer, or a certifi,ed copy of the contract~ shall serve as the

control qocument: ··

However, the Journey ·form. shall· be ·completed,. in_ the .. form of. a monthly statement.

5. The journey fo~s used shaU be ·returned to the competent authority or agency in the Membe~ State of establishment in accordance with p(ocedui:es -to be laid down by :the ~forementioned authority or agency. ·

1.

2.

3.

.-Article s· -

. At the· end of each quarter and within. three ·months, which may be'·reduced by · the Commission to one month in the case referred. t~ in Article 9,- t_he competent authority or agency in each Member. State shall corrimuriicate to the_ Cominission

. the. data concerning cabo4tge tranSport operations, in the form of special regular . services and occasiona~ services, · carried' <;>ut during that -quarter by resident carriers. '.,(

The co-mmunication shall be effected by . means of- a ~ble collforming to the model adopted by the Commission after cortsultiilg tlie Member States. · . . . . - . . - . ,.. /.

Once ·a. year the competent authorities in the. host Memberr State shall s~nd the Cominission statistics on the number of authoriZations , issued for cabotage . transport operationS iri the foim of the regular services def'ined ~n A~icle J(2) and '(3). . . . - . . . .

/

-:The Corn.nlission shall ~send the Member States as sqoil as poss~ble summary statements drawn up on the basis of the data submitted under paragraph _1.

Article 9

1. In the· e_vent of serious disturba~ce of the internal _transport market ,in a given . geographical area due to o~ aggravated by cabotage,' any MemberS tate may refer the matter to die Commission with a view to the adoption of safeguard measures · and shall"pr~)Vide.the Commission witli the neeessary. information .and notify it of

. the measures it intends to take as.regards resident carrie~s.. . . .

2. For the purposes' of paragraph 1: ·

"serious distUrbance of the internal traQSport market in a given geographical area" means the occt~:rrence on that market of problems specific to it, such

. that there is a serious· and -potentially enduring excess of supply over . f· ·.

1'9·

demand, implying a threat to the financial stability and survival of a significant nutpber. of passenger transport undertakings;

"geographical area" means an area comprising part or all of the territory of a Member State or including part or all of the territory· of other Member States.

3. ·. The Commission s~U examine the-situation. and, after consulting the Advisory Committee referred to in Article 10, shall decide within one month of receipt of the relevant Member State's request whether or not safeguard measures ar;e necessary and shall adopt them if they are necessary. ·

The measures introduced in accordance with this Article shall remain in force for a period not exceeding six months, renewable once for the same period.

' -

the Commission shall· without delay notify the Member States and the Council of any decision taken pursuant to this paragraph ..

_ 4.. If the Commission decid~s to take safeguard measures concerning one or more Member States, the competent authorities of the Member States involved shall be required to take, measures of equivalent scope in respect of resident carriers and . shall infomi the Commission thereof. · · ·

These·measures shall be implem~nted no later than the same.date as the safeguard . measures decided on by the Commission. ,

5. Each Member 'State may submit a Commission decision as referred to in paragraph '3 to the CounciL witli.in 30 days of its notification.

The Council, acting by a qualified maJonty within 30 days of referral by a ·Member State or, if there are. referrals by more than one·Member State, of the first· referral, may take a different decision.

_ The limits of validity laid down in the second subparagraph of paragraph 3. shall · apply to the_'Council's de.cision.

. The competent authorities of the Member States concerned shall be bound to take measures of equivalent scope in respect of resident carriers and shall inform the . .

Commission thereof.

If the Council takes · no decision wi~hin the period laid down in the second subparagraph, the Commission decision becomes final.

. 6. Where the Commission considers- that the measures referred to in paragrapp 3 need to be prolonged, it shall submit a proposal to the Council'; which shall take a ·decision by qualified' majority.

Anicle 10

20

'·

The Commission shall . be .assisted by an ·Advisory Committee.· composed of . representatives of the ·Member States· and c}laired by a representative of the Commission.

/ . . - .

The tasks of the Committee shall be to .advise the.c;ommission On:

any request from a Member State under Article 9(1);-

,measures i~tended to resolve a seriou~ disturbance of the mark~t as 'referred to . 'iri Arlicl~ 9, iJ1 parti~ular on the practical applic~tion of such rneasl!res. . .

The Committee shall draw up its rules of procedur:e~

·Articlell

1. Member States shall assist one .another in applying this,,Regulation .

. 2. Without prejudiee to crimipal prosecution; the host Member: State ·may impose . penalties. on non-res~dent carriers. who have ·committed infringements ·of .this· Regulation or of CommunitY or riadonal transport regulations within its territory on the o~asion of a catx>tage tranSport operation. ' ,· .

· Th:e ·penalties shall be iniposed ·on a~non-.discriminatory . basis and in accordance with !lara graph 3. . , · · ·

3, ·.. The penalties referred to' in paragraph 2 may,interalia, consist of a warning or, ill the event of serious or repeated infringements, a t~mporary ban' on cabotage transport operations within the territory of the hos( M~mber State \yhere 'the ·infringement .was committed. · · · ·

Where· a falsified certificate, falsified·· authorization. or falsified certified C9PY. ·. thereof is produced, the falsified document shall be withdrawn inllnediately and,,

where appropriate, .forWarded· as soon a5'possible .to the competent authority of the carrier's Member State of establishment. · .

4.. · The competent autl},oriiies of the host Member State shan· inform 'the competent ·.· authorities of the MemlJ:er ·State_ of establishment of the infringements. recorded

· and any pe11alties ilnposed on the carrier and may, in the event of serious · or xep~ated infringements,, 'at the same time tran5mit a request ~at a penalty be imposed.

t.

· · In the e\fent of serious or r:epeated·mfringement:S, the competent authorities of the· MemberSta:te of establishment shall deCide whether an appropriate penalty sl).ould · be imposed on die cattier concerned; these authorities shall take .into ac~ount any p~nalty already impdsed in .the host Member State and ensure· that the penaltJes already imposed on the carrier concerned are, as a whole, -proportiomil to the

· infringement or infringements which gave rise tq such penalties.

21·

/

The penalty irriposed by the ~co_mpetent authoritie~ · of the Member- State of establishment, after consulting the competent authorities of the, host Member State, may extend to withdrawal of authorization to pursue the occupation of road

. - . ' . pas~enger transport operator.

The competent authorities of the Member State of establishment. may also,· pursuant to its national·law, arraign the carrier concerned before a competent national court or tribunal.

. . . They shall inform the competent authorities of. the host Member State of the decisions taken pursuant . to this paragraph. ' ·

·Article 12

Member States shall ensure that carriers may appeal against any aqministrative penalty imposed on them. . ·

Article 13 . .

The Corrml.ission shall reporrto the Council before 31 December 1999 on the application of this Regulation and, in particular, on the impact of cabotage transport operations on national t-fansport ~narkets.

Article 14

· Member States shall adopt in good. time and corrimurricate to the Cornrilission the _laws, · regulations and administrative provisions relating to the implementation of this Regulation ..

Article 15

This Regulation shall· enter into force on the first day following itS publication in the Official Journal of the European Communities.

It shall apply from ~ Jam.iary 1996.· . . . .

This Regulation shall be binding in its entirety and directly. applicable in all Member States. ,

Done at Brussels,

For the Council The President

22·

iMPACT ASSESSMENT FORM

THE IMPACT-OF THE PROPOSAL ON BUSINESS WITH , SPECIAL REFERENCE TO SMALL AND .

. _ MEDru:M_-SIZED ENTERPRISES (SMEs)

Title of proposal:-

. Co~ncilRegulation-Htying_down the conaitions undet which non-res!de~t c~rriersma.y operate national road passenger transport senrices within a Member State .

. The proposal -,' .,

·' - •• • < .- '

. 1. Taking account of the principle of subsidiarity, why is Community legislation . necessary in this area and what are the main aims? . . .

This Community legislation i!) based on Article 7 5-( 1 )(b) of the Treaty. . This confers on . • ' I ' ' ' '

the Cpmm_ui:tity exclusive powers to defme the conditions under which non-resident - -carders may operatetramport ser\rices within a Member State .. In addition,· the internai

· mark~t has established-the principle of the fre¢om to provide S«?rvices-which, in the case of transport, implies ending all discrimination against- providers of .senrices on the grounds of their nationality or :place of establishment. ·

Also, the proposal will replace Council Regl.Ilation No 2454/92 of23 July 1992 laying · . down the conditions under whi~h noii.,resident earners may operate national ·road ·passenger transport services within a Member State, whicl'\.the Court of Justice animlled · · · on 1 June 1994. following a fault in th~ procedure. ' ' .

. Nev~rtheless _the new proposal has been ,updated _to take full account of the progress made in the · transport ·sector since the establishment of the internal market. In this

. context, the-new propos~l incorporates most of _the clauses in Regulation 2454/9i ·but also removes Certain restrictions maintained by Regulatibn 2454/92 on sp~cial regulaJ;

· services and introduces cabotage in regular senrices, subject to certain. cbnditions.

Th(;. impact on business

! ·'

2.. Who will be affected ~Y- the proposal?

Which ·sectors of business? .. ·.·•

-Operators of rbad passenger senrices for·h~re or reward admitted in their M~mber. States of establishment to .the occupation of rpad passenger transport operator in. international transport. Will the propbsal affect S-MEs- ~ore thanbl.g. businesses? . .

· The proposal will affect all busines~es, -irrespective of their-size~- That said, it, . must be added that approximately 80% of road transport undertakings are-small .

firms: · , . . · - '

Are there particulargeographical areas oftheCommunitywhere these businesses. ~~~ . . .

23

. <

The proportion of small businesses is relatively high -in the southern· Member States.

3. What will business have to do to comply with the proposal? ·

Nothirig

4. What economic effects is the proposal likely to have?

On employment? Cabotage opens up new opportunities for coach services an(i Will lay the foundation fot the creation of new jobs in this industrY in the medium term. On investment and the creation of new businesses? The undertakings· concerned will be able to benefit from the internal. market, the European Economic Area and a travelling public of 3 70 million citizens. This large market will inevitably require new inv~stment by existing undertakings and the ·creation of other new undertakings in the coach tra.n.sport sector. · On the competitive position of businesses? The introduction of cabotage will open up the various national passenger transport · markets in the European Urn on and the European Economic Area to non-resident undertakings. ·As a result,· these will be able to offer their services wherever the opportunities arise. A single market of 370 million ci~ns will undeniably · enhance the competitiveness of· the undertalq.ngs concerned but also benefit European citizens, wherever they live, since· gt;eater competition will. offer them · a wider choice of means of transport. ·

5. . Does the proposal contain measmes to take account· of the specific situation of small and medium-sized frims (reduced or different requirements. etc.)?

- i . . . . ., .

No.··

Consultation .

6. List the organizations which have been con~ulted about the proposal and outline their main views · . . ·

Since the proposal will replace Council Regulation No 2454/92 of :?3 July 1992 laying down the·conditions under which non-resident carriers may operate national toad passenger transport ser\rices. within· a Member State, which the Court of Justice annulled on 1 June 1994 because of a fault in the procedure, and since :it

· incorporates virtually all the provisions of that Regulation, there was no need to consult the trade associations. .

24

I

I I

j

.. l

ISSN 0254,-1475 · ..

·'· '

COM(95) 729 final- ·

,· )

. <DOCUMENTS . .~.. .., .

-.EN . 07 06- -

. . . . . '-· .

Cat~Iog{re riumber : CB-C0~95-763-EN-C· _J'

\, ...

· ISJ3N 92-77-98702-2

./.

Office for Official Publicatioi1S. of the European Comm.Unitic:S

L-2985 Luxen;tbourg